POINT Beyond Oliphant: Strengthening Criminal Justice in Indian Country By Hon. Troy A. Eid

Violent crime continues to take a mas- sive toll on Native Americans—to the point that more than one-third of Indian women will be raped during their life- times. Many Indian reservations suffer from a chronic lack of basic criminal jus- tice services. Strengthening public safety means reassessing decisions by the U.S. Supreme Court that limit tribes from fight- ing crime. This includes revisiting the Court’s decision in Oliphant v. Suquamish Tribe, which prevents tribes from asserting criminal jurisdiction over non-Indians, in order to bring more criminal justice resources to Indian country.

Introduction: Tragedy at Towaoc ew of the half-million tourists who visit Mesa Verde National Park in southwestern Colorado each year Fwould suspect that the nearby village of Towaoc is the murder capital of Colorado. Vacationing motorists might mistake this picturesque village (pronounced TOY’awk), nestled below Sleeping Ute Mountain—resem- bling a stone giant sprawled lazily on his back with arms folded across his chest—as a place of tranquility amid the vast landscape of the Four Corners area, where Arizona, Colorado, New Mexico, and Utah meet. Yet everyday life in Towaoc, capital of the 2,000-mem- ber Ute Mountain Ute Tribe, is filled with violence, fear, and despair. Last year alone, five people were murdered on the Ute Mountain Ute Reservation. A sixth unexplained death is still being investigated, along with at least two prior unsolved homicides. At a time when the United States, outside of Indian country, has generally experi- Three Rivers Petroglyphs Site, New Mexico. enced steady or even declining incidents of violent crime, Photo by Lawrence Baca. the murder rate on Ute Mountain is at least 20 times Col- orado’s state average. ficers. This creatively desperate attempt at self-help proved Ute Mountain has become a haven for all kinds of crim- dangerous when one or more snipers, tracking the civilian inals—Indian and non-Indian alike—who confront a capa- patrols’ movements with police radio scanners, began fir- ble but chronically short-staffed law enforcement pres- ing at the civilian patrols with high-powered rifles. Without ence. Only five police officers—all from the U.S. Depart- enough trained patrol officers and investigators in the ment of the Interior’s Bureau of Indian Affairs (BIA)—pa- field, crime scenes on Ute Mountain are often compro- trol a reservation about the size of Rhode Island. Some- mised, critical evidence is destroyed, and witnesses disap- times just one BIA police officer is available on call, result- pear. BIA police chiefs at Towaoc have routinely served ing in response times of more than one hour.1 Unarmed tours of duty of no more than 120 days—and sometimes groups of tribal employees were recently assembled into just one month—before being rotated by BIA to work on civilian patrols to serve as extra “eyes and ears” for BIA of- other Indian reservations throughout the American West.

March/April 2007 | The Federal Lawyer | 1 COUNTERPOINT Promoting Tribal Self-Determination in a Post-Oliphant World: An Alternative Road Map By Elizabeth Ann Kronk roy Eid’s article, “Beyond Oliphant: Strengthening relief from tribal court decisions would not be sufficient Criminal Justice in Indian Country,” is an insightful without the conditions he proposes. The reality of prac- Tcommentary on a significant problem in Indian coun- tice, however, seems to suggest otherwise, as very few try: the jurisdictional and law enforcement quagmire cre- habeas petitions from tribal court convictions are filed ated by the Supreme Court’s 1978 decision in Oliphant v. every year. According to Professor Matthew L. M. Fletcher, Suquamish Indian Tribe, 435 U.S. 191, holding that tribes in the past 39 years, there has been less than one petition do not have criminal jurisdiction over non-Indians. Eid’s per year for habeas review of a tribal court decision. article portrays some of the problems faced by law en- Moreover, the executive and legislative branches of the forcement in addressing the unacceptably high rate of federal government support tribal self-determination. On crime in Indian country and accordingly calls for a con- Sept. 23, 2004, President George W. Bush released a mem- gressional repeal of Oliphant. Whereas I agree with Eid orandum articulating the administration’s commitment to that a congressional repeal of Oliphant is long overdue the policy of tribal self-determination.1 The President’s and would go a long way toward addressing the milieu of memorandum was merely the reiteration of a long-stand- Oliphant-related problems in Indian country, I disagree ing federal government policy of respecting tribal sover- with his proposed solution, which conditions repeal of eignty and promoting tribal self-determination. Further- Oliphant on requirements that would apply Western more, congressional legislation has consistently supported norms of criminal justice on tribal courts. I offer this com- and articulated the policy of tribal self-determination.2 mentary to further the discussion Troy Eid has started. Troy Eid’s proposed remedy also runs afoul of the prin- Rather than conditioning the repeal of Oliphant on ciples of cooperation and mutual respect that were articu- making tribal courts adopt certain measures, a post- lated at the Federal Bar Association’s 31st Annual Indian Oliphant discussion should begin with a consideration of Law Conference held in Albuquerque, N.M., on April 7, tribal self-determination. Currently, tribes live with alien 2006. At the conference, Christopher Chaney, deputy direc- Western criminal justice norms that reflect the value judg- tor of the Office of Law Enforcement Services at the Bureau ments of an invasive, dominant society and do not con- of Indian Affairs; Matthew Mead, U.S. attorney for the Dis- sider tribal values of justice. Value judgments as to how trict of Wyoming; and Willie Noseep, a member of the East- tribal courts must operate and conditions on tribal juris- ern Shoshone Business Council, discussed how federal diction over non-Indians are contrary to meaningful sov- government, state and local officials, and tribes worked co- ereignty and self-determination. operatively to dismantle substantial drug trafficking organi- It is useful to begin with a fundamental premise: Juris- zations. (See the discussion of Jesus Sagaste-Cruz in the ac- diction over non-Indians is an inherent right possessed by companying case study on the use of methamphetamines tribes before their first contact with Europeans, removed in Indian country.) Successes, such as those presented at only through the policy changes made by the Supreme the recent Indian Law Conference, show that tribal govern- Court since 1978. The congressional intent behind the In- ments can work cooperatively with outside law enforce- dian Civil Rights Act of 1968 was to allow tribes to devel- ment officials without the need to apply Western norms of op their own justice systems with the minimum baseline criminal justice to tribes in a unilateral manner. of civil rights imposed by the act. Therefore, tribal juris- Accordingly, given the federal government’s policy of diction over non-Indians is not an increase of tribal pow- promoting tribal self-determination, suggestions—such as er, but is rather a removal of a constraint created by the those made by Eid requiring tribes to conform to Western Supreme Court on a power that existed before the forma- norms of criminal justice—are misplaced. Congress has tion of the United States. In addition, given the restrictions recognized that the policy of tribal self-determination has of federal statutes such as the Major Crimes Act, tribes been successful in promoting progress in Indian country.3 would still have jurisdiction only in mostly misdemeanor Therefore, it would not seem prudent to abandon this matters, as a result of a congressional repeal of Oliphant. policy now. Also, some tribes have, as a sovereign and A congressional repeal of Oliphant without conditions selective choice, taken steps to address some of the con- or waivers of sovereign immunity is consistent with self- cerns raised by Eid; therefore, a conditional repeal of determination. A long-term solution to the problems laid Oliphant is not necessary. For example, § 7 of the Navajo out in Eid’s article involves more than transforming tribal Nation’s Bill of Rights guarantees the right to counsel, courts into agents of state and federal courts. Congress in- which has been recognized by the Navajo Supreme tended for tribal courts to develop their own systems, re- Court.4 In fact, many tribal courts require more protec- strained by a minimum of civil rights, when it passed the tions from criminal procedures than federal or state courts Indian Civil Rights Act. Unacceptable errors can be cor- ever did.5 Tribal judges have traditionally been more em- rected by habeas review. Eid suggests that habeas corpus pathetic to defendants and have understood what works

March/April 2007 | The Federal Lawyer | 2 In recent years, the tribal court in Towaoc, also run by half as many police officers per capita as similarly situated the BIA on a contract basis, has functioned only sporadi- rural communities.7 This disparity has shrunk on several cally. Aside from preventing the enforcement of misde- reservations thanks to a combination of increased tribal meanor laws under the tribal code, this lack of continuity funding and targeted financial and technical aid from the causes violent crimes to go unpunished under federal law, Justice Department, the BIA, and other federal agencies. because potential witnesses cannot be detained locally Yet on Ute Mountain and in many other communities, while investigations are completed and federal charges are the gap stubbornly persists. Last year, the BIA hired a pri- filed. At one point, the BIA jail in Towaoc shut down en- vate consultant to determine what it might take to put tribal tirely because of a lack of funds. All this uncertainty and law enforcement and corrections on an equal footing with lack of enforcement of the law has fueled local mistrust in similarly situated off-reservation communities. The consul- the Federal Bureau of Investigation and the U.S. attorney’s tant’s report recommended that the BIA hire 1,097 new em- office—the agencies that, under the Major Crimes Act and ployees to achieve parity in criminal justice and corrections other statutes, are chiefly responsible for ensuring that jus- programs. (By comparison, the BIA’s Office of Justice Ser- tice is done for victims of violent crime in Indian country. vices currently has about 450 total employees on its pay- Meanwhile, the nearest U.S. district judge serving the citi- roll.) According to the consultant’s estimate, BIA had a 69 zens of Towaoc is more than 400 miles away in , percent unmet staffing need for law enforcement officers an eight-hour drive—even in good weather. and a 61 percent unmet need for correctional facilities and “People shouldn’t have to live like this in the United programs. In addition, the report concluded that tribes States,” U.S. Attorney General said re- should hire 1,059 new law enforcement officers, based on cently when asked about the situation on Ute Mountain.2 a staffing gap of 33 percent in that category, and 341 cor- Federal law enforcement officers, prosecutors, and judges rectional officers based on a 24 percent staffing gap.8 should properly regard the attorney general’s statement as Strengthening public safety in Indian country through a call to action. The condition that is perhaps the most more effective law enforcement, prosecution, and adjudi- obvious problem at Ute Mountain—too much violent cation may be a perennial budget challenge, but the con- crime, too little law enforcement—is being repeated to versation should not end there. Another critically impor- varying degrees on many of America’s roughly 300 other tant way to narrow the public safety gap in Indian country Indian reservations. And if a lack of law enforcement per- is to reassess legal decisions made by the U.S. Supreme sonnel does not present enough of a challenge, there are Court and other federal tribunals that hinder tribal govern- similar problems with tribal courts’ capacity to adjudicate ments from devoting more of their own limited re- criminal defendants and tribal detention facilities’ ability sources—along with whatever funds Congress might to house them. choose to provide—to fighting crime. The law simply does The U.S. Department of Justice reports that, from 1992 not reflect the federal government’s long-standing policy to 2001, the average rate of violent crime among American of promoting tribal self-determination with respect to other Indians (ages 12 and older) was two-and-one-half times the core governmental functions, such as health, public wel- national rate.3 Examples abound. On the White Mountain fare, and the environment—in President Bush’s words, “to Apache Reservation in Eastern Arizona, 10 people were work with tribal governments on a sovereign-to-sovereign murdered last year alone—13 times the national homicide basis.”9 Reforming federal criminal law and jurisdiction to rate.4 Violent crime helps explain why the life expectancy give tribal governments more freedom to provide respon- for adult men living on the Pine Ridge and Rosebud Indian sibly for their own public safety needs—for their members Reservations in South Dakota is just 56.6 years—compared as well as for non-Indians who visit or live, work, and in- to a national average male life span of 72.9 years—and is vest in Indian country—is a discussion worth having. lower than that of males in any nation in the Western Hemisphere except Haiti.5 Native American women are Trapped in the Jurisdictional Maze seven times more likely to be victims of domestic violence The sheer jurisdictional complexity of federal Indian than all other women are; more than 60 percent of Indian law—with both the adjudicative forum and applicable law women will be victims of violent assault during their life- depending on the type of crime, status of the land where time, and more than one-third will be raped.6 the offense occurred, and identity of the victim and the Understanding why the rate of violent crime is so dis- suspect (Indian or non-Indian)—seriously impedes the ef- proportionately high in Indian country is important to all fective administration of justice. Since 1885, U.S. attorneys of us, and our nation will benefit greatly from expanded and tribal governments have had the primary responsibili- research, analysis, and public discussion of this vexing ty for prosecuting violent crimes in Indian country. Yet problem. Yet no matter why such crime exists, there is also even this basic division of labor has its arcane exceptions. an urgent need to explore how Indian reservations can be For example, crimes involving only non-Indians in Indian made safer now, based on what we do know today. country are subject to exclusive state jurisdiction. In states Decades of direct experience elsewhere strongly suggest where Public Law 280 applies, state governments may or that intensifying law enforcement, prosecution, and adjudi- may not exercise criminal jurisdiction over Indians and cation in troubled communities can reduce violent crime— non-Indians alike, depending on the specific reservation often dramatically. According to the Justice Department’s or criminal offense at issue.10 More recently, in Nevada v. own estimates, in 1997, Indian country was served by only Hicks, the Supreme Court allowed state officers investigat-

March/April 2007 | The Federal Lawyer | 3 and what does not work on the grounds of tribal justice. country, and will “help relieve burdened [s]heriff’s offices Moreover, there is evidence that Western norms of that are currently primarily responsible for policing non- criminal justice may not even be effective in Indian coun- Indian misdemeanants in Indian [c]ountry.”9 try. “Though Congress has often justified imposition of the I appreciate Troy Eid’s willingness to open the discus- federal criminal justice system in Indian country on the sion about the most effective solution to the jurisdiction theory that federal laws are necessary to protect public quagmire in Indian country that was created in part by the safety, numerous statistical surveys suggest that the feder- Supreme Court’s Oliphant ruling. However, rather than al Indian country criminal justice regime has not achieved adopt a road map that applies Western norms of criminal any such purpose.”6 The ineffectiveness of Western norms justice to tribal courts, my proposed road map navigates of criminal justice in Indian country may be the result of toward a post-Oliphant world of greater tribal self-determi- divergent traditions. For example, according to one ana- nation. I certainly look forward to the ride! TFL lyst, “State and federal enforcement come from a long his- tory and practice of coercing confessions from suspects Elizabeth Ann Kronk is an enrolled member of the Sault (one of the reasons to guarantee an attorney and a jury of Ste. Marie Tribe of Chippewa Indians in Michigan and peers) that is missing from most [t]ribes.”7 serves as secretary of the FBA Indian Law Section. She is In fact, asserting Western norms of criminal justice may also an assistant professor of law at the University of Mon- actually stifle the development of more effective tribal so- tana School of Law, where she teaches courses in Indian lutions to crime in Indian country by precluding tribes law and . The author offers her pro- from creating models that more effectively incorporate found thanks to Julie Sirrs and the library staff at the Uni- their own tribal traditions. For example, the versity of Montana School of Law, especially Professor has developed a culturally sensitive model to address Stacey Gordon and Bob Peck, for their research assistance problems on the Navajo Nation Reservation, the largest with this article. She would also like to thank Lawrence Indian reservation in the United States. After the Western Baca, Professor Matthew L. M. Fletcher, Professor Ray police model that relied on power, force, and authority Cross, Professor Michelle Bryan-Mudd, and Hon. Jenny failed—partly because of the alien nature of that model— Lee Kronk for their helpful comments. the Navajo Nation developed a system of justice “based upon discussion, consensus, relative need, and healing. It Endnotes is ‘restorative justice,’ which puts people in good relations 1Memorandum from George W. Bush to Heads of Ex- with each other, and in continuing relationships. The ecutive Departments and Agencies: Government-to-Gov- Navajo system is ‘horizontal’ or egalitarian law.”8 The ernment Relationship with Tribal Governments (Sept. 23, Navajo Nation’s new model of restorative justice has suc- 2004), available at www.whitehouse.gov/news/ ceeded where the Western model failed. releases/2004/09/print/20040923-4.html. Tribal norms of criminal justice, such as the restorative 2Indian Self-Determination and Education Assistance justice practiced by the Navajo Nation, are just as relevant Amendments of 1988, Pub. L. No. 100-472, 102 Stat. 2285, to non-Indians living in Indian country as they are to Indi- 2296 (1988). ans. The vast majority of non-Indians over which a tribe 3Id. (“… compared to state, county and municipal gov- would have jurisdiction following a congressional repeal ernments of similar demographic and geographic charac- of Oliphant would be permanent members of the com- teristics, the level of development attained by [t]ribal gov- munity, not mere vacationers. As members of the tribal ernments over the past twelve years in remarkable. This community, these non-Indians would have just as strong progress is directly attributable to the success of the feder- an interest in the community’s healing process as would al policy of Indian self-determination.”). Indian members of the community. Moreover, just as Indi- 4Boos v. Yazzie, 6 Nav. R. 211, 214 (Nav. Sup. Ct. ans should be willing to accept Western norms of criminal 1990). justice when they are outside Indian country, so too 5E.g. Rodriguez v. Navajo Nation, No. SC-CR-03-04 should non-Indians be prepared to accept tribal judicial (Nav. Sup. Ct. 2004), available at navajolawblog.com/wp- norms when they are in Indian country. content/Rodriguez.pdf. Thus, given that Western norms of criminal justice have 6Kevin K. Washburn, Federal Criminal Law and Tribal failed in Indian country and tribes have successfully de- Self-Determination, 84 N.C. L. REV. 779, 786 (March 2006). veloped effective means of enforcement, Congress should 7Matthew L.M. Fletcher, Fletcher: Means Case a repeal Oliphant without conditions, such as those sug- Supreme Affirmation of Tribal Authority, INDIAN COUNTRY gested by Eid, that run afoul of the policy of self-determi- TODAY (Oct. 20, 2006), available at www.indiancountry. nation and would, in effect, make tribes agents of the fed- com/content.cfm?id=1096413861. eral government. An alternative post-Oliphant solution 8Robert Yazzie, “Hozho Nahasdlii”—We Are Now in that furthers the policy of self-determination would be an Good Relations: Navajo Restorative Justice, 9 ST. THOMAS L. amendment to 25 U.S.C. § 1301(2) recognizing tribal juris- REV. 117, 120 (Fall 1996). diction over “all persons.” This proposed solution offers 9Christopher B. Chaney, Overcoming Legal Hurdles in multiple benefits: Unconditional congressional repeal of the War Against Meth in Indian Country, 82 N.D. L. REV. Oliphant increases tribal self-determination, breaks down ___ (forthcoming, March 2007). a significant hurdle to effective law enforcement in Indian

March/April 2007 | The Federal Lawyer | 4 ing off-reservation crime to search an Indian’s residence The Role of Oliphant on trust land within a reservation, undermining the often This time, the legislation before the committee con- delicate cooperative policing arrangements that have been tained a new twist: A proposed section to the Homeland painstakingly forged between many state and tribal law Security Act—§ 13—which would repeal, albeit only in enforcement officers.11 certain instances involving homeland security, the Court’s The federal criminal statutes operating in Indian country 1978 decision in Oliphant v. Suquamish Indian Tribe. themselves add to the jurisdictional maze. Under the Major Oliphant held that, absent express authorization from Crimes Act, the United States has jurisdiction to prosecute Congress, Indian tribes lack criminal jurisdiction over non- a laundry list of serious crimes—but only those involving Indians.14 “In the view of many,” Heffelfinger testified, Indians. The General Crimes Act, in contrast, applies to all “the Oliphant decision has created a gap in Indian [c]oun- federal offenses, but does not apply to crimes that are try law enforcement and negatively impacts tribes’ abili- committed by Indians and whose victims are Indians. In ties to respond effectively to terrorist incidents and other still other federal prosecutions, state law is assimilated crimes which may be committed by non-Indians in Indian through federal law, with the offense charged and prose- [c]ountry.” Nonetheless, Heffelfinger continued, “overrul- cuted in federal court ing Oliphant in a broad but the crime itself and isolated manner,” defined and the sen- without comprehensive tence determined by jurisdictional reform, state law. An exam- was “premature.” In the ple is a vehicular end, § 13 was never en- homicide case where acted.15 a non-Indian sus- Proponents of § 13 pect, allegedly im- testified at the July 2003 paired by using alco- hearing that the net ef- hol or illegal drugs, fect of Oliphant was to causes the death of discourage or even pre- an Indian on a state vent tribes from taking right-of-way within greater responsibility for the boundaries of a their own public safety. reservation.12 The majority opinion in Justifiably con- Oliphant hinted at this cerned about this ju- in its ruling, leaving the risdictional quag- issue to Congress but mire, in July 2002, warning: “We are not the Senate Commit- unaware of the preva- tee on Indian Affairs lence of non-Indian convened a hearing crime on today’s reser- focused on how fed- vations which the tribes eral law frustrates Bandelier National Monument, New Mexico. Photo by Lawrence Baca. forcefully argue requires law enforcement in the ability to try non-In- Indian country. Then U.S. Attorney Thomas B. Heffelfin- dians.” A generation after the Oliphant decision, then U.S. ger of Minnesota, who at the time chaired the Native Sen. Ben Nighthorse Campbell (R-Colo.), questioning the American Issues Subcommittee of the Attorney General’s impact of Oliphant during the hearing held in July 2002, Advisory Committee, called on the committee to provide observed that “the word is out that people can get off the “jurisdictional clarity in order to allow us to do our multi- hook, so to speak, if they are not Indian and they do ple functions within the Department of Justice.” Heffelfin- something on Indian land.”16 ger stressed the need for a comprehensive approach to ju- Sen. Campbell’s warning is a familiar scenario to federal risdictional reform, rather than a narrower fix provided by prosecutors in Indian country, especially in domestic vio- Hicks or other decisions: “[W]e have to develop a pattern lence and child abuse cases in which the suspect claims to of cooperation across Indian country and across the Unit- be a non-Indian and therefore beyond the jurisdiction of ed States. The law must foster that.”13 Heffelfinger repeat- the tribal police officers who typically respond in such cas- ed this position the following year, when the Indian Af- es.17 One current way to thread the jurisdictional needle is fairs Committee met to consider Senate Bill 578, a series for tribal officers to obtain cross-commissions from state, of amendments to the Homeland Security Act broadly local, and federal officials to expand their authority to ar- aimed at including tribes in national antiterrorism plan- rest non-Indian criminal suspects under state or federal ning. He again called for jurisdictional clarity, achieved law. In practice, this is much easier said than done, partic- through comprehensive legislative reform, to remove legal ularly after the Hicks decision. The resources for cross- barriers to more effective law enforcement in Indian training officers can be severely limited, requiring innova- country. tive approaches. The U.S. Attorney’s Office for the District

March/April 2007 | The Federal Lawyer | 5 of Colorado, the Southern Ute Indian Tribe (headquartered ers’ justifiable concern about such matters, would create a in Ignacio, Colo.), and the Bureau of Indian Affairs recent- valuable off-reservation constituency to support tribes in ly joined forces to develop a pilot training program for their efforts to improve their criminal justice systems. At tribal police officers. The pilot program is intended to re- the same time, moving beyond Oliphant would create a duce by one-half the training time required for BIA to practical deterrent to non-Indian and Indian offenders grant special law enforcement commissions that enable tempted to treat Indian lands as prosecution-free zones. tribal police officers to issue federal citations.18 In too More fundamentally, much of Indian country has many other instances, however, civil liability considera- changed substantially since 1978, when Oliphant was de- tions interfere with cooperative law enforcement. cided, let alone since 1968, when the Indian Civil Rights As an Oliphant jurisdictional work-around, cross-desig- Act was enacted. Building on President Richard M. nation agreements are not nearly as practical or plentiful as Nixon’s Indian self-determination policy, many tribal gov- one might conclude from reading about them in federal ernments are undergoing what has been compared to a court decisions. Effective law enforcement over non-Indi- renaissance, gaining substantially increased governmental ans who commit crimes in Indian country varies widely de- sophistication and economic development. These tribes pending on the reservation, and in practice such enforce- have tended to embrace laws and policies that seek to de- ment often does not exist. This state of affairs, in turn, has volve more discretion and responsibility from the federal prompted a searching review by several commentators into government to tribal authorities.21 whether Oliphant itself should be modified or repealed. To make this a more productive dialogue, however, we Most recently, the BIA’s law enforcement director, Christo- must be realistic about the scope, magnitude, and difficul- pher B. Chaney, a veteran former federal and tribal prose- ty of what we are talking about. Ending the results of the cutor, takes direct aim at Oliphant along with the Indian Oliphant ruling means applying tribal court jurisdiction to Civil Rights Act, which prevents tribes from imposing fines all citizens, but in a way that fully protects their rights un- in excess of $5,000 or jail sentences of more than one year. der the U.S. Constitution. Anything less than that could Oliphant, Chaney writes, is a legal hurdle in the war become the “broad and isolated” repeal against which against methamphetamine trafficking and abuse in Indian Tom Heffelfinger testified on behalf of the Justice Depart- country. Congress could strengthen public safety in Indian ment in 2003. In other words, what would it really take country by amending 25 U.S.C. § 1301(2) to give tribal gov- for a repeal of Oliphant not to be “broad and isolated”? ernments criminal jurisdiction over “all persons”—much as How might the change be positioned within a compre- Congress did when it passed legislation that overturned the hensive reform that achieves greater jurisdictional clarity Court’s decision in Duro v. Reina—an amendment that rec- for law enforcement officers, attorneys, and judges?22 ognizes tribes’ jurisdiction over “all Indians” rather than just their own tribal members.19 “This would bring added law Charting a Post-Oliphant Road Map enforcement authority to tribal communities,” Chaney con- Any serious (albeit hypothetical) discussion of what a cludes, “and help relieve sheriff’s offices that are currently post-Oliphant world might look like starts with this prem- primarily responsible for policing non-Indian misde- ise: The depth and consistency with which tribal courts meanants in Indian [c]ountry.”20 protect criminal defendants’ civil rights must be on a par Chaney cautions that he is writing for himself, not an- with that of defendants in state court criminal proceed- nouncing any change in BIA or Department of the Interi- ings. Otherwise, habeas corpus relief from tribal court de- or policy related to the Oliphant decision. He concludes cisions alleged to have violated federal constitutional that overturning Oliphant could increase law enforcement rights might not realistically be a sufficient remedy.23 De- resources in Indian country and thus reduce crime there, fendants would presumably expect to be retried de novo and that the proper focus should be on structuring tribal in U.S. district court for violating tribal criminal codes— justice systems in a way that will protect the civil liberties essentially imposing a costly and frustrating exhaustion of all defendants—Indian and non-Indian alike. Given the requirement for all concerned and, from the tribes’ per- unacceptably high rate of violent crime in Indian country spective, a serious infringement on tribal courts’ sover- and the need to enlist more law enforcement, prosecu- eignty, with federal judges applying tribal law. tion, and adjudication resources to meet that challenge, A better approach would be to ensure that the tribal Chaney’s ideas deserve serious discussion within the fed- courts themselves meet federal constitutional require- eral government and with the tribes. ments in terms of ensuring due process and providing a What Chaney does not state in his groundbreaking arti- full and fair forum by an independent, neutral arbiter. cle—and what should also be said plainly—is that a con- Several tribal court systems, such as the Navajo Nation gressional repeal of Oliphant would give non-Indians a Supreme Court and district courts, are already meeting far greater stake in the future of Indian country than they that threshold standard in some respects, but not in all, would otherwise have during our lifetimes. The possibility such as judicial independence. This development is re- that non-Indians might face criminal proceedings in tribal markable given that these court systems were not de- court, unlikely though it might be for the vast majority of signed—and are not currently configured—to adjudicate Americans, would nonetheless be real. Over time, poten- criminal matters involving non-Indian defendants. Other tial exposure of non-Indians to tribal courts and police tribes could probably make the transition, provided that departments, in addition to federal and tribal policy-mak- the tribe’s leadership decided it was a priority.

6 | The Federal Lawyer | March/April 2007 All this suggests that tribes might be given the flexibili- Conclusion ty to opt in to a post-Oliphant world on a case-by-case Wherever a hypothetical post-Oliphant conversation basis. Those tribal courts wishing to exercise criminal ju- might lead, the discussion is timely and extraordinarily risdiction over non-Indian defendants could be supported important, given the disproportionately high rate of vio- in doing so starting on a certain date, provided they agree lent crime in Indian country and the need for expanded voluntarily to integrate federal constitutional substantive law enforcement there. A greater emphasis on tribal sov- and procedural protections into their justice systems. This ereignty and self-determination in tribal criminal justice would mean, as in state courts, that the definition of what policy would echo the approach that has so dramatically constitutes a permissible search and seizure under tribal improved the delivery of many other essential govern- case law, for example, would be separate and distinct ment services on Indian reservations in recent years. That from its federal counterpart, provided again that all feder- approach holds enormous promise for making Indian al constitutional requirements are met as a “floor” on per- country safer for all, provided there is no compromise on missible rights. The Indian Civil Rights Act would neces- protecting the rights of the accused in federal criminal sarily need to be modified in several critical respects, such proceedings. The status quo—and the lingering public as providing indigent defendants a right to defense coun- safety gap between Indian country and similarly situated sel. Another concern—one raised by the Oliphant Court— rural communities—is unacceptable and must end. Too involves jury pools. At the time the case was decided, the many lives have already been lost on Colorado’s Ute court for the Suquamish Tribe did not allow non-Indians Mountain Ute Reservation and other Indian nations. To to participate in juries. That situation has changed dramat- cynics who say it will take too long to turn this tragedy ically for many tribal courts, which now require a “fair around, our answer must be this: Let’s get started. TFL cross-section of the community” standard for jury selec- tion and service. For instance, the Navajo Nation Supreme Hon. Troy A. Eid is the U.S. attorney for the District of Col- Court has held that non-Indians in the community are en- orado. He took office on Aug. 11, 2006, following his ap- titled to sit on juries in Navajo courts.24 pointment by President George W. Bush and unanimous The good faith pursuit of parity between tribal courts confirmation by the U.S. Senate. A graduate of Stanford and state courts, as a condition precedent for repealing University and University of Law School, Eid is li- Oliphant, also means acknowledging that tribes should censed to practice law in the courts of Colorado and the not be required to provide greater civil rights protections Navajo Nation. The contents of this article are solely the to criminal defendants than states do. Ironically, several opinion of the author and do not represent the positions or provisions of the Indian Civil Rights Act currently do just views of the U.S. Department of Justice. The author thanks that. Professor Kevin K. Washburn, another seasoned for- Jim Allison, Diandra Benally, Jim Candelaria, Chris mer Indian country federal prosecutor, writes eloquently Chaney, Jeff Dorschner, Janelle Doughty, Allison Eid, Judy on this point, noting, for example, that the right to a jury Evans, Paul Farley, Paul Frye, Leslie Hagen, Albert Hale, trial is much broader in tribal courts than in state courts Tom Heffelfinger, Ernest House, Paul Moorehead, Tom because of ICRA. In a tribal court, a defendant is entitled Shipps, Tracy Toulou, Kevin Washburn, and Sam Winder to a jury trial if he or she is accused of an offense that is for their helpful insights. Special thanks to Cheriene Now- ick, Amy Petri, and Mariann Storck for research assistance. punishable by any term of imprisonment—even petty of- fenses—whereas a state court defendant may only de- mand a jury trial if charged with a felony or a misde- Endnotes meanor punishable by a term of imprisonment of at least 1The relatively slow response times of law enforcement six months. Parity between tribal courts and state courts on Indian reservations can be common, as compared to ought to mean exactly that—no less, but also no more.25 average response times of five or six minutes in major Still another matter that might arise if Oliphant is re- U.S. metropolitan areas. See Sen. Daniel K. Inouye, Con- pealed is the sovereign immunity of government officials temporary Tribal Governments: Challenges in Law En- in the civil context. The combined effect of § 1303 of the forcement Related to the Rulings of the U.S. Supreme Court, Indian Civil Rights Act and the Supreme Court’s decision 107th Cong., 2d Sess., S. Hrg. 107-605, Senate Committee in Santa Clara Pueblo v. Martinez is to limit federal re- on Indian Affairs, p. 2 (July 11, 2002). view of tribal court decisions to habeas corpus.26 This ex- 2Hon. Alberto R. Gonzales, meeting with the ROCKY pansive definition of tribal sovereign immunity is actually MOUNTAIN NEWS editorial board, Denver, Colo., Nov. 20, greater than that afforded to the states, where defendants 2006. have the alternative remedy under 42 U.S.C. § 1983 to 3U.S. Department of Justice, Bureau of Justice Statistics, challenge alleged misconduct by state and local police American Indians and Violent Crime, BJS STATISTICAL PRO- and other government officials. In conjunction with re- FILE, 1992–2002, 4–5 (2004). pealing Oliphant, the Santa Clara Pueblo ruling might be 4FBI Probes 10th Murder on the Reservation, WHITE modified to provide a qualified waiver of sovereign im- MOUNTAIN INDEPENDENT, Show Low, Ariz., p. A1 (Dec. 22, munity in such cases, again to ensure greater government 2006). accountability and protection of defendants’ civil liberties. 5Dr. Christopher Murray of the Harvard School of Pub- lic Health, reported in Chet Brokaw, Study: Improved Health Needed for Indians, YANKTON (S.D.) PRESS & DEMOC-

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